I think you are over simplifying a lot here. The secure element of touch ID is incorporated into Apple's A7 and later chips not in the NFC chip. If touch ID is not necessary for Pay then why is Pay limited only to Apple products that have touch ID? I don't think FRAND applies at this point as Apple hasn't applied for nor submitted touch ID for FRAND approval/acceptance and there is plenty of alternatives (not as good or secure, imo) out already and more being announced...